Medicinal and recreational marijuana possession (a Class B misdemeanor under KRS 218A.1422), trafficking (KRS 218A.1421), and cultivation (KRS 218A. 1423) remain illegal in Kentucky. KRS 218A.005 et seq. govern controlled substances and criminal penalties related to such. Kentucky’s Cabinet for Health and Family Services has authority (per KRS § 218A.020) to set Kentucky’s schedules of controlled substances (902 KAR 55:015), which tracks to the federal schedule at 21 C.F.R. 1308.11.
“Marijuana” is defined in KRS § 218A.010(28), although the definition has received revision in recent years, starting with a change in 2013 to note that industrial hemp (as defined in KRS § 260.850) was not included. Notable changes came in 2014, with the exclusion of medicinal cannabidiol (CBD) prescribed by a hospital affiliated with a state-run university and any drug approved for clinical trials by the FDA. In 2017, the industrial hemp exclusion was clarified so that it applied to the possession, custody, or control of a person who held a license from the Department of Agriculture to do so, and so long as products made from it did not contain any living plants, leaves, flowers or viable seeds. CBD products derived from industrial hemp became legal that year, as did all prescribed CBD products approved by the FDA.
No. House Bill 136, which would have legalized medicinal cannabis, passed the Kentucky House of Representatives in a 65-30 vote, but it stalled in the Senate and may not pass before the legislative session adjourns on April 15, 2020. The bill would have legalized the possession, growth, processing and use of medical cannabis for qualified medicinal users and related businesses. Medical cannabis has gained support in Kentucky in recent years, earning high profile advocates such as Gov. Andy Beshear and Senator Rand Paul.
The statutes governing Kentucky hemp cultivation, processing, and sale are found in KRS 260.850 et seq. A license from the Kentucky Department of Agriculture is required to cultivate, handle, process, or market living hemp plants, viable seeds, leaf materials or floral materials derived from hemp. KRS 260.858(2). Hemp tetrahydrocannabinol must not exceed a delta-9 tetrahydrocannabinol concentration in excess of three-tenths of one percent (0.3%). Violators are subject to the same penalties as those who violate provisions of KRS 218A relating to marijuana.
Kentucky has been on the forefront of industrial hemp production since before the passage of the Agricultural Improvement Act of 2018, which removed industrial hemp from the definition of “marijuana” in the federal schedule of controlled substances.
In 2001, HB 100 created the Kentucky Industrial Hemp Commission to study industrial hemp and set up pilot programs at state universities under new Chapter 260 of the Kentucky Revised Statues, but KRS 260.865 also aligned the state’s scheme with federal rules and regulations. In 2013, after federal law was amended to allow industrial hemp for the purpose of research by institutions of higher learning, Kentucky enacted SB 50, which legalized industrial hemp and created a licensing scheme for growers through the Department of Agriculture. Kentucky expanded this program in 2017, repealing, revising, and reenacting large swaths of KRS Chapter 260 to promote hemp, declaring it a “viable agricultural crop in the Commonwealth.”
As of 2020, minor changes have been made, but the hemp program as expanded in 2017 continues.
According to the Kentucky Department of Agriculture, the number of planted acres for hemp grew from 33 in 2014 to 26,500 in 2019; however, there were 60,000 acres approved for hemp production in 2019. Gross Product Sales for Hemp in 2019 reached $57.5 million, with more than 200 processors/handlers and about 978 approved growers.
Kentucky has seen great growth in hemp production since hemp has been legalized. Investment opportunities are available for those interested in growing, handling, processing, or cultivating hemp. However, the market is still in flux, and multiple processors declared bankruptcy in 2019 and 2020. The Kentucky Department of Agriculture acknowledges that persons in the hemp industry “are having difficulty finding a market for the expanded production.” Persons or entities interested in being a hemp grower or processor need to obtain a license through the Kentucky Department of Agriculture.